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Samsung getting heat for using 3G patents in lawsuits against Apple

by Phil Hornshaw

Samsung isn’t having a great time of it in terms of its legal battles.

The South Korean device maker has been embroiled in patent fights with Apple for quite a while now, with injunctions and bans getting leveled against Samsung products as Apple accuses infringement of patents it owns on its iOS devices, such as the iPhone or iPad. Samsung has fought back, attempting to leverage its considerable 3G patents against Apple and get its iDevices banned from various countries for infringing on Samsung’s intellectual property.

But it’s those very 3G patent lawsuits that have gotten Samsung into trouble with the European Union.

As Ars Technica reports, the European Commission announced this week that it would be investigating Samsung for lawsuits it has brought against other companies concerning 3G technology patents that are covered under the fair, reasonable and non-discriminatory, or FRAND, rules.

FRAND rules apply to patents owned by companies that are essential for other companies to do business in that same industry. In Samsung’s case, FRAND rules apply to its 3G patents – the idea is that EU governments regulating what the standards are for a certain technology use patents owned by one company or another when setting those standards, which allows that company to license the technology to other companies and make money doing it.

The FRAND rules, however, state that companies that own essential patents, like those required to make 3G-enabled smartphones work at all, as Samsung has, be made available to all other companies without discrimination. The licensing fees collected by the patent owner must also be fair and reasonable to the other companies.

In Samsung’s case, the company is being investigated under allegations that it discriminated against Apple when granting licenses for its essential 3G patents. Judges in France, Italy, The Netherlands and Germany have also denied Samsung injunctions against Apple products using its FRAND patents, and those countries tend not to look favorably on companies that try to use FRAND patents – which are supposed to be reasonably available to all members of an industry – as instruments to bring about lawsuits.

The European Commission began its inquiry into Samsung in November, but now is fully investigating Samsung in an attempt to determine “whether Samsung Electronics has abusively, and in contravention of a commitment it gave to the European Telecommunications Standards Institute (ETSI), used certain of its standard essential patent rights to distort competition in European mobile device markets, in breach of EU antitrust rules,” a Commission statement said as reported by Ars Technica.

This seems like it probably spells the end of Samsung’s attempts to use its 3G patents to combat Apple’s more successful attacks against its Android device-making rival. Samsung and Apple are basically neck-and-neck in terms of smartphone market share right now, thanks to the iPhone 4S. It seems possible, however, that the EU investigation could change that and mean some pretty serious consequences for Samsung in the future.